- The Washington Times - Wednesday, February 22, 2006

The United States Patent and Trademark Office last week cast another cloud of uncertainty over the Washington Nationals by granting a Cincinnati company the right to register a trademark for the team’s name.

The PTO said Bygone Sports could register the term “Washington Nationals,” clearing the way for the company to seek an injunction against the team’s use of the name. Depending on the ruling of a judge in federal court, the team could be forced to change its name or retain it but relinquish any right to sell team merchandise.

The decision by the U.S. Patent Office was reported in yesterday’s New York Times.

The dispute over the Washington Nationals trademark dates back several years. Bygone filed a trademark application for “Washington Nationals” in September 2002, more than two years before Major League Baseball (MLB) awarded the Expos franchise to Washington.

MLB, which still owns the team, contends it struck a deal with Bygone on Nov. 12, 2004, about 10 days prior to announcing the team would be named the Nationals. An attorney for Bygone said only an oral agreement had been reached.

“Major League Baseball says that they had a deal,” said Bygone attorney Roger Kaplan. “We say they had no deal. And the reason they had no deal is it was baseball’s fault. They kept adding things to the deal that were burdensome, to the point where we said we were done. We were done negotiating.”

Conversely, MLB claimed Bygone was being unreasonable after it increased its asking price for the trademark rights from $130,000 to $1.5 million. The league sued Bygone in June, and the company filed a countersuit in July.

A federal court judge in Manhattan could rule on motions for summary judgement in both cases early next week. If either case moves forward, a trial is scheduled for April 3.

According to attorneys familiar with trademark law, the burden for Bygone is proving it has a legitimate business on which the Washington Nationals name is based.

“They still have to actually put [the name] into use,” said Joshua Kaufman, a trademark and copyright attorney at the Venable LLP firm in the District. “The Washington Nationals can probably get it back if the other entity never had a legitimate intention of using it.”

Currently, Bygone Sports, founded in 2002, does not have a company Web site, but is selling Washington Nationals T-shirts for $7 online. The shirts feature a Washington Nationals logo and coloring similar to that used by the team, and the company said it will begin selling hats at the end of this month.

Bygone is also attempting to trademark other team names, including the Homestead Grays, New York Knights and New York Cubans, Kaplan said.

An MLB spokesman declined to speculate whether the Nationals name could change, or whether it would be willing to re-enter talks with Bygone to acquire the trademark.

“We’ll see what happens with this litigation,” Rich Levin said. “If there are issues to be worked out afterward, we’ll take a look at them then.”

There appears to be no rule requiring the Washington franchise to be named the Nationals. In legal documents, the team is usually referred to as “Baseball Expos L.P.,” and a stadium lease agreement makes no mention of Nationals, leaving open the chance that a new owner could change the name. The lease only requires that the team name contain the word Washington.

The trademark dispute comes at a time when the future of the Nationals franchise in Washington remains cloudy, because MLB and the District still must agree on the terms of a stadium lease agreement. The D.C. Council approved the lease on Feb. 8, but insisted the league agree to a measure that would cap the amount of money the city would pay toward the ballpark. MLB has been in discussions with city officials to ensure that it, too, is not exposed to stadium cost overruns. The league has until March 6 to sign off on the deal, or the matter could move to binding arbitration.

Got a question about the Nats?

Mark Zuckerman has the answers. The Times’ beat reporter for the

Nationals will respond to your questions on-line and in print each

Monday, beginning Feb. 27. Send questions to Mark at natsmailbag@washingtontimes.com

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